Feb. 20
TEXAS:
Decision day for father trying to save son from Texas death penalty
Kent Whitaker, struggling to halt the looming execution of the son who upended
his life 14 years ago, should know shortly after 1 p.m. Tuesday whether his
efforts have passed the 1st critical hurdle.
Whitaker long ago forgave his son, Thomas Whitaker, for setting up the ambush
that killed his wife and only other child as they returned to their Sugar Land
home in December 2013. With Thursday's execution date approaching, Kent
Whitaker begged the Texas Board of Pardons and Paroles to recommend that his
son's death sentence be reduced to life in prison.
If a majority of the 7-member board favors clemency, the decision on whether to
commute the death sentence would be up to Gov. Greg Abbott.
The board will vote around 1 p.m., with out-of-town members faxing their
ballots in to the parole board's Austin office. Shortly after that, Kent
Whitaker and his lawyer, Keith Hampton, expect to receive a phone call to learn
the results.
Thomas Whitaker, now 38, was sentenced to death for luring his family out to
dinner so an armed friend could await their return home. Shot in the upper
chest, Kent Whitaker barely survived the ambush, but his wife Tricia and
youngest child Kevin, a college sophomore, were killed.
In an attempt to deflect blame, the gunman also shot Thomas Whitaker in the
arm, but police eventually saw through the facade.
The shooter, Chris Brashear, was given a life sentence after pleading guilty to
murder, while the getaway driver, Steve Champagne, agreed to a 15-year plea
deal and testified against Whitaker.
Kent Whitaker said his Christian faith allowed him to forgive his son. Now he
wants the parole board and Abbott to acknowledge that as the crime's chief
surviving victim, his wishes should be respected and his son's life should be
spared.
"I have seen too much killing already," Kent Whitaker recently told the
American-Statesman. "I know Tricia and Kevin would not want him to be executed.
I can't imagine seeing the last living part of my family executed by the state,
especially since all the victims didn't want that to happen in the first
place."
If his efforts fail, Kent Whitaker has promised to be on the other side of the
death chamber window in Huntsville when his son is administered the fatal dose
of pentobarbital.
"As he goes to sleep, I want him to be able to look at me and see that I love
him. I really want him to know that I forgive him, that I love him," he told
the Statesman. "I don't want to see this. God, I don't want to see this. I've
seen enough killing. But I can't imagine letting him be in the room by himself
without anyone there with him."
(source: Austin American-Statesman)
******************
Despite Years On Death Row For A Crime He Didn't Commit, Anthony Graves Still
Has 'Infinite Hope'----Graves was wrongfully convicted of murder and spent 18
years in prison - much of it in solitary confinement. He talks about the
experience in his new book.
Anthony Graves spent 18 years in prison for a crime he didn't commit. He talks
about his experience on death row and in solitary confinement in his book
Infinite Hope.
Anthony Graves says he never thought much about the death penalty. That is
until - as he says - the death penalty came knocking at his door and changed
his life forever.
At age 26, Graves was wrongfully convicted of murdering 6 people. He was
sentenced to death and spent 18 years in prison - much of it in solitary
confinement. Eventually, he was exonerated and released.
Now, he travels the world talking about criminal justice issues, including the
horrors of the death penalty and why he believes imprisoning inmates for years
in solitary confinement is constitutionally unjust.
Graves tells his story in a new book, called Infinite Hope: How Wrongful
Conviction, Solitary Confinement, and 12 Years on Death Row Failed to Kill My
Soul.
(source: houstonpublicmedia.org)
DELAWARE:
Delaware law is overturned, yet 2 remain on death row
2 men remain on death row a year and a half after the state Supreme Court ruled
Delaware's death penalty unconstitutional.
Michael R. Manley and David D. Stevenson have been fighting their convictions
since being sentenced 20 years ago. Ironically, those decades-long battles are
what is keeping them on death row.
"It's routine," said Robert Dunham, executive director of the Death Penalty
Information Center, a Washington, D.C.-based nonprofit.
That's because what typically occurs when the state or U.S. Supreme Court
declares a law unconstitutional is if the case is pending on appeal it will be
modified the next time it comes to the sentencing court.
For example, when Ohio's death penalty was declared unconstitutional in 1978
there were 54 cases pending in the that state's Supreme Court, Dunham said. As
a result, all of those were immediately resentenced to life in prison. But
there were another 50 in the appellant process. Those cases took longer to
resentence.
Ohio has since reinstated its death penalty.
The same is being seen in Connecticut where its Supreme Court ruled the state's
death penalty unconstitutional in 2015.
"The Connecticut Supreme Court was still deciding issues in its death penalty
cases as recently as last month," Dunham said.
While some might think it's a waste of time to wait to modify the sentence,
Dunham explained the appeals are not always challenges to the death penalty. In
some cases, prisoners are challenging their convictions.
"They may not be guilty of first-degree murder and they were wrongly sentenced
to death, so this would take the death penalty off the table but it doesn't
affect the fairness of their underlying conviction," Dunham said.
He pointed to Jermaine Wright who spent more than 20 years on death row before
a Delaware court, in 2012, overturned his conviction and death sentence on the
premise he wasn't properly advised of his rights during the police
interrogation - a nearly 13-hour event in which Wright provided a confession
while high on heroin.
Wright, in 2016, pleaded no contest to second-degree murder and was sentenced
to time served.
(source: News Journal)
FLORIDA:
Rubio says he believes alleged Florida shooter should be executed
Sen. Marco Rubio (R-Fla.) said he believes the person who opened fire last week
at a Florida high school should be executed.
During an interview with CBS Miami, Rubio was asked whether he believes Nikolas
Cruz, who has been charged with 17 counts of premeditated murder, should get
the death penalty.
"The answer is yes," Rubio said.
But he added it's a tough question to answer because he has larger concerns
about the death penalty.
"Not in a case like this, I have concerns in the broader sense about how not
everyone gets equal representation in death panels," he said.
"But in this particular case, it'd be hard to argue against the death penalty."
His comments come after Cruz last week allegedly opened fire at a Florida high
school, killing 17 people and wounding 14 more.
The FBI has faced scrutiny over its handling of Cruz.
A person close to Cruz called the FBI's public tipline in January and raised
concerns about a possible school shooting, citing Cruz's gun ownership and
desire to kill.
But the FBI never reported the tip to its Miami field office or investigated
the claim.
President Trump ripped the FBI in a tweet over the weekend, suggesting the
bureau could have stopped Cruz if it spent less time working on the Russia
probe.
(source: thehill.com)
OHIO:
Attorney General appealing decision to keep Warren child killer off death
row----Danny Lee Hill's attorneys say he is mentally deficient and should not
have gotten the death penalty
Ohio Attorney General Mike DeWine is appealing a decision by the U.S. Sixth
District Court of Appeals that would keep a man convicted in the brutal murder
and sexual assault of a child off of death row.
The Attorney General's Office filed the appeal Friday, seeking a review of the
ruling by the 3-judge panel that determined that Danny Lee Hill was too
mentally deficient to face the death penalty.
Raymond Fife was 12 years old when he was killed in Warren. His mother last saw
him alive on Sept. 10, 1985 when he left on his bike and headed to a Boy Scout
meeting.
Prosecutors and police say Danny Lee Hill, who was 18 at the time, and Timothy
Combs, who was 17, attacked, raped, tortured and murdered Fife.
Both were convicted of aggravated murder and several other charges. Since Combs
was a juvenile he was sentenced to life in prison. Hill was sent to death row.
Hill's attorneys, however, have filed numerous motions saying his IQ is low and
he is too intellectually disabled to be executed. A federal appeals court
agreed with them earlier this month.
DeWine claims the judges disregarded important testimony about Hill's
intellectual ability. Trumbull County Prosecutor Dennis Watkins said that not
enough credit was given to witnesses, including mental health experts, who
determined Hill was not disabled. One witness testified that a person who IS
mentally disabled would not call a press conference, as Hill did.
(source: WKBN news)
****************
Death penalty is not justice, it's vengeance
On Feb. 14, The Enquirer ran a story asking, "Why is a murder trial here so
much more likely to end with a death sentence?" The article recited statistics
showing that the death row population from Hamilton County murder convictions
is the highest in Ohio, and among the highest on a per capita basis in the
entire United States. And it points out the particular case of Raymond
Tibbetts, whose crime truly was an example of the kind that Hamilton County
prosecutor describes as "so hideous" and "evil" that they deserve the death
penalty. But while such a case might seem to cry for capital punishment, is
imposing it really necessary to do justice and to protect society? Principles
of Catholic theology suggest that the answer is no.
Of course, legislators, prosecutors, juries, and judges are not bound by
Catholic theology. But the rationale for the Church's prudential judgment about
capital punishment is instructive for people of any or no faith, rooted as it
is in 2 principles of what is known as Catholic Social Doctrine: the dignity of
all human people, and the protection of the common good.
It cannot be denied that the crimes of Tibbetts and others on death row are
cruel, violent and hideous. No theory of punishment should attempt to minimize
either the viciousness of the crime or the devastating effect on the families
and friends of the victims. I cannot imagine the horror, and will not pretend
that I can put myself in the place of those who suffer from, or because of,
these horrible deeds. But no crime, or series of crimes, regardless of their
severity, wholly remove the basic dignity of the person who committed them. No
person, regardless of the crime, is beyond the possibility of redemption and
rehabilitation. And geography should never have such a central role to play in
the measure of justice, as it does in Hamilton County.
Nor, given laws that require life sentences without parole and the
technological advances of prison systems, does the common good require putting
a criminal to death. At least part of the purpose of a criminal justice system
is to protect society from the criminal, either through the deterrent effect of
the laws or, failing that, severe penalties for breaking them. When the
deterrent effect fails, the penalty is imposed. But justice does not require
doing more than is necessary to protect society. Exceeding the demands of
protecting society is not justice, but vengeance, something that the law should
not seek. A system that does not have life without parole might suggest a
theoretical justification for capital punishment. But a system that does
provide such a sentence suggests that capital punishment exceeds the bounds of
justice, and lapses into retribution.
The Catechism of the Catholic Church summarizes these points by explaining, "If
. . . non-lethal means are sufficient to defend and protect people's safety
from the aggressor, authority will limit itself to such means, as these are
more in keeping the concrete conditions of the common good and more in
conformity with the dignity of the human person."
Echoing this section, in a famous letter from 1995, St. Pope John Paul II wrote
that punishment "ought not go to the extreme of executing the offender except
in cases of absolute necessity: in other words, when it would not be possible
otherwise to defend society. Today, however, as a result of steady improvements
in the organization of the penal system, such cases are very rare, if not
practically non-existent." Put another way, if it is not necessary to inflict
capital punishment for the sake of common good, it is necessary not to inflict
it for the sake of human dignity.
Again, secular law is not bound by Catholic theology. But these doctrines
appeal to broader principles of human reason, or what some people call "natural
law." They correspond even to some secular or humanist theories of justice. And
regardless of the source, they are principles that contribute to a more just,
humane, and peaceable human community. People rightly convicted of heinous
crimes deserve a full measure of justice. But neither they nor society deserves
even a scintilla of vengeance.
(source: Editorial, Kenneth Craycraft is a lawyer, theologian, and member of
the Enquirer Board of Contributors----Cincinnati Enquirer)
MISSOURI:
Missouri Fought For Years To Hide Where It Got Its Execution Drugs. Now We Know
What They Were Hiding.
The state of Missouri did everything it could to keep secret where it got the
drugs it used to put 17 inmates to death. Now, BuzzFeed News has discovered the
supplier is a pharmacy repeatedly found to engage in hazardous practices that
could put patients - and convicts - at risk.
The state of Missouri has engaged in a wide-ranging scheme - involving code
names and envelopes stuffed with cash - to hide the fact that it paid a
troubled pharmacy for the drugs it used to execute inmates.
Procuring execution drugs has become almost impossible, as major pharmaceutical
companies stopped making them or refused to provide them for capital
punishment. Missouri itself faced a crisis in early 2014, when the previous
pharmacy it had been using was exposed in the press and stopped providing the
state with drugs. Scrambling, Missouri found a new pharmacy and stockpiled the
lethal injection drug pentobarbital, enabling it to set a record pace for
executions, scheduling one a month for more than a year.
To hide the identity of the new pharmacy, the state has taken extraordinary
steps. It uses a code name for the pharmacy in its official documents. Only a
handful of state employees know the real name. The state fought at least 6
lawsuits to stop death row inmates and the press from knowing the pharmacy's
identity. Even the way Missouri buys and collects the drugs is
cloak-and-dagger: The state sends a high-ranking corrections officer to a
clandestine meeting with a company representative, exchanging an envelope full
of cash for vials of pentobarbital. Since 2014, Missouri has spent more than
$135,000 in such drug deals.
Death row inmates fear that drugs prepared by such pharmacies could result in a
painful and protracted death.
But now, BuzzFeed News can reveal the supplier: Foundation Care, a 14-year-old
pharmacy based in the suburbs of St. Louis that has been repeatedly found to
engage in hazardous pharmaceutical procedures and whose cofounder has been been
accused of regularly ordering prescription medications for himself without a
doctor???s prescription. Late last year, Foundation Care was sold to a
subsidiary of health care giant Centene Corporation, which declined to say
whether it will allow the pharmacy to continue supplying execution drugs.
According to 2 sources with knowledge of the matter, Missouri used Foundation
Care's drugs for 17 executions. The sources spoke on the condition of anonymity
because of strict state laws that prohibit disclosing or publishing the
identity of the supplier.
Foundation Care is what is known as a compounding pharmacy, one that mixes
specialty drugs that are not readily available on the market. These pharmacies
are more loosely regulated than traditional manufacturers, and slipshod
practices at some of them have led to tainted drugs and deadly disease
outbreaks.
Death row inmates fear that drugs prepared by such pharmacies could result in a
painful and protracted death.
According to more than 900 pages of court records and regulatory findings, as
well as interviews with more than half a dozen people familiar with the
company, Foundation Care has been accused of multiple problems.
In 2007, the Food and Drug Administration inspected the pharmacy after a
patient who took a drug supplied by Foundation Care developed pneumonia. The
FDA found that the pharmacy was not testing all of its drugs for sterility and
bacterial contamination, and it uncovered a lab report that indicated a vial of
the pharmacy???s drugs had, in fact, been contaminated with bacteria. After
initially denying that the vial was tainted with bacteria, the executives later
insisted that they had purposefully infected it as part of a test, a story the
FDA did not accept.
In 2013, the FDA designated Foundation Care a "high-risk" pharmacy, and when
FDA agents showed up to inspect it, the company's CEO tried to block them from
entering and threatened legal action. Inspectors, who ultimately gained access,
found "multiple examples" of lax procedures that the agency warned "could lead
to contamination of drugs, potentially putting patients at risk."
2 former senior employees - including the head of pharmacy operations - have
alleged in a lawsuit that Foundation Care violated state or federal regulations
by reselling drugs returned by patients, purposefully omitting the names of
ingredients in drugs it prepared, and failing to notify other states about a
$300,000 settlement with Kansas over allegations of Medicaid fraud. The suit
also accuses one of the pharmacy's founders of "regularly and frequently"
ordering prescription medications for himself without a prescription, a crime
that carries up to a year behind bars. One of the employees alleged that during
a dispute with the founders, she was held against her will and feared she would
be physically struck. Foundation Care and its founders have denied the
allegations, and the suit is ongoing.
A suit by another former employee, a pharmacy tech, alleges that she complained
to her supervisors and the Missouri Board of Pharmacy about "serious
operational violations." The employee alleged she was fired shortly after
filing her complaint. The company denied the allegations and settled with the
employee out of court.
When first approached by a reporter in 2015, Foundation Care's CEO and head
pharmacist, Dan Blakeley, flatly denied that his company supplied Missouri with
its execution drugs.
"I don't know what you're talking about," Blakeley said. "All I can tell you is
your sourcing is mistaken."
When a reporter visited in person this month and informed Blakeley that
BuzzFeed News would be publishing a story identifying the pharmacy as
Missouri's supplier, his assistant said he didn't want to talk. The pharmacy
also did not respond to a detailed list of questions sent by email.
"M7's decision to provide lethal chemicals to the Department was based on M7's
political views on the death penalty, and not based on economic reasons." In
court papers, Foundation Care said that it sold execution drugs for political
reasons. "M7's decision to provide lethal chemicals to the Department was based
on M7's political views on the death penalty, and not based on economic
reasons," a representative for the pharmacy wrote in a 2016 affidavit, using
the state's code name for Foundation Care.
"M7's decision to supply lethal chemicals anonymously arises out of M7's fear
of harassment and retaliation, both physical and financial, if M7's identity is
released."
One question that remains unanswered is how Foundation Care itself obtained the
pentobarbital it sold4 to the state - did it mix the drug on its own or somehow
procure a manufactured version? Akorn Pharmaceuticals, the only manufacturer
permitted to make the drug in the United States, requires its distributors to
sign agreements that they will not sell its products to executioners.
The state of Missouri declined repeated requests for comment, but Foundation
Care was selected as the state's execution drug supplier by Matt Briesacher,
who was then the general counsel for the Missouri Department of Corrections. He
also declined a request to comment for this story, but in a sworn deposition,
just weeks after he had selected the pharmacy, Breisacher refused to say how he
found it or what he knew of its past.
"Did you make inquiry as to whether any professional complaints had been filed
against M7?" Briesacher was asked.
"Yes," he said.
"And were there any?"
Briesacher's attorneys objected, and he declined to answer.
In August 2007, 2 investigators from the FDA descended on Foundation Care's
headquarters in Earth City, Missouri.
They were responding to a physician's complaint, which alleged that Foundation
Care had mixed and sold a drug that caused a "life threatening" illness to a
patient with cystic fibrosis. After the patient took the drug, called Colistin,
she had trouble breathing and developed a bad cough that made her vomit, the
doctor wrote. Soon, the woman was hospitalized, and an X-ray showed signs of
pneumonia.
In a subsequent lawsuit, Foundation Care denied wrongdoing and reached a
settlement for an unknown sum years after the patient had died.
In the 2007 inspection, investigators found the pharmacy was not testing all of
its drugs for sterility and bacteria before shipping them to patients. While
going through the pharmacy's documents, the investigators also noticed a lab
result that showed an "embedded object" in a drug the pharmacy mixed. The
embedded object turned out to be bacteria.
At first, Blakeley, the company's CEO, denied that it was bacteria, saying it
was merely dust.
Days later, Blakeley said that he and another Foundation Care executive had
purposefully infected the vial as part of a test, opening the vial with a can
opener to replicate what a customer had done. Foundation Care produced no
records to back up this account, so the agency refused to accept it and cited
the pharmacy for not properly documenting and investigating what happened.
In 2012, compounding pharmacies across the country came under new scrutiny when
one in Massachusetts mixed drugs that infected at least 750 people with
meningitis, killing 76. In response, the FDA identified 29 compounding
pharmacies across the US - including Foundation Care - that the agency deemed
"high-risk."
Compounding pharmacies are supposed to mix medications for the specific needs
of patients. For example, a patient who needs a certain drug that comes in pill
form but who can only take it as a liquid could use a compounding pharmacy to
make it. Compounding pharmacies are regulated mostly by states, and the drugs
they produce have a significantly higher failure rate than those of
manufactured drugs, which are regulated by the FDA. Inspections by the Missouri
Board of Pharmacy over the past decade found that 1 in 5 drugs created by
compounding pharmacies failed to meet standards.
A photograph taken by FDA investigators shows a Foundation Care employee
entering the pharmacy's clean room.
In March 2013, in the wake of the meningitis outbreak, FDA inspectors again
showed up at Foundation Care's front door, but Blakeley, the CEO and head
pharmacist, didn't want to let them in. "Mr. Blakeley didn't believe we had the
authority to inspect his facility unless we had a product complaint or drug
recall," the lead FDA investigator wrote in a report.
After arguing with the investigators over whether they could enter or take
documents, Blakeley eventually relented.
The 3 investigators found "multiple examples" of sloppy work that could lead to
contaminated drugs. The inspectors also found that the pharmacy was not doing
enough to "assure that drug products conform to appropriate standards of
identity, strength, quality and purity." The inspectors found inadequate
hand-washing and questionable gloving practices, and they determined that a
test for sterility and a common toxin had not been conducted since at least the
previous year.
Foundation Care's conduct "could lead to contamination of drugs, potentially
putting patients at risk."
When the inspectors told Blakeley what they found, he "stated if we post our
findings he will seek legal counsel and come at us with a vengeance, anyone
involved," the investigator wrote.
Foundation Care would later tell the FDA that it would enact changes in
response to some of the findings. But to many of the criticisms, the pharmacy's
response was that it didn't need to change its practices because it adhered to
state standards. (After the 2012 meningitis outbreak, the FDA sought greater
oversight of companies such as Foundation Care - and, in fact, cited the
pharmacy's practices as a specific reason why the agency needed more control
over drug compounders.)
Following its 2nd inspection of Foundation Care, the FDA sent a letter to the
Missouri Board of Pharmacy in February 2014 warning that the pharmacy's conduct
"could lead to contamination of drugs, potentially putting patients at risk."
It is unclear whether the Missouri pharmacy board took steps to oversee
Foundation Care, because the state refused to turn over inspection records to
BuzzFeed News. But on the very day the FDA warned Missouri about the company,
executioners injected Foundation Care's drugs into a death row inmate.
Regulators are not the only ones who raised alarms about Foundation Care.
Inside the company, employees said their bosses engaged in dangerous
pharmaceutical practices, asked them to break the law, and, when they refused,
meted out swift retaliation.
In 2017, 2 of the company's top employees - Katie Mothershed, who had been the
head of pharmacy operations, and Gina Jaksetic, the former senior director of
client relations - filed suit in state court, accusing the pharmacy of serious
violations. Among them: Foundation Care took medications returned by patients
and, in violation of state law, resold them to other customers; Blakeley and
Foundation Care CFO Mike Schultz asked employees to omit some ingredients from
the label of a pain-killing cream; and Schultz ordered drugs for himself
without a prescription.
According to the suit, the pharmacy's founders breached another legal
requirement when they refused to tell other states that Foundation Care had
reached a settlement with Kansas over allegations of Medicaid fraud. (In 2015,
without admitting wrongdoing, the pharmacy had agreed to reimburse the state of
Kansas for $300,000.)
Blakeley and Schultz both carried guns in the office, the suit says, and
Schultz frequently yelled at and demeaned the women. Mothershed described a
meeting with the 2 executives that became so heated that Blakeley stood in the
doorway and physically barred her and Jaksetic. Meanwhile, "Schultz repeatedly
yelled at Mothershed to 'shut up' and 'shut her mouth,'" according to the
lawsuit. "Schultz also repeatedly yelled 'who do you work for' in an animated,
intimidating manner."
Schultz "sprang toward Mothershed with his hands in the air," the suit says,
and both Jaksetic and Mothershed believed he was going to hit her.
After 45 minutes, the suit says, Blakeley moved aside and let the women leave.
The 2 women declined to speak with BuzzFeed News. Their attorney declined to
comment.
Foundation Care lawyers have denied the allegations in court filings.
Another employee sued Foundation Care for racial discrimination in July 2016.
Yolandra Smith, a pharmacy tech who is black, said she was threatened and fired
because she complained to her superiors and the Missouri Board of Pharmacy
about "serious operational violations." The nature of those allegations is
unclear, because the state refused to turn over records to BuzzFeed News.
After she was fired, Smith accused Foundation Care of filing false information
in an effort to keep her from receiving unemployment benefits. She said that
Foundation Care's owners treated her differently because of her race.
The pharmacy denied the allegations and settled out of court. Smith also
declined to speak with BuzzFeed News.
Shortly before each execution, David Dormire would climb into his car carrying
an envelope stuffed with more than $7,000 in cash, nearly all of it in $100
bills. Dormire, the 2nd in command at the Missouri Department of Corrections,
was buying lethal injection drugs for the state.
No other corrections employee would join him on his trips, out of concern that
too many people would know who he was buying the drugs from. Only a handful of
people within the Department of Corrections knew the pharmacy's real name.
Dormire would hand over an envelope of $7,178.88 to "M7," the state's code name
for Foundation Care. In exchange, Dormire got four vials of pentobarbital, or
10 grams. It was double what was required for 1 execution, providing the state
a backup in case things went wrong. Shortly before each execution, David
Dormire would climb into his car carrying an envelope stuffed with more than
$7,000 in cash, nearly all of it in $100 bills.
The purchase of execution drugs is the only state function known to operate in
such secrecy, skirting anti-fraud rules by deploying envelopes of cash and
brushing aside the requirement for a witness to the transactions.
Nationwide, the secrecy behind lethal injections has led to botched execution
attempts and illegal drug deals. In 2015, a Georgia execution had to be called
off after the executioners discovered the syringe had particles floating in it.
Georgia promised a transparent investigation into what went wrong, but when the
results did not fit with the state's theory that the drug was compromised
because of the cold temperatures it was stored in, the state attempted to
withhold the results from the public, the media, and the courts.
Oklahoma executed a man with the wrong lethal injection drug after the
pharmacist knowingly sent the wrong drug, and the state nearly made the same
mistake again before it noticed the error. A grand jury, led by the state's
conservative attorney general, produced a report that placed much of the blame
on the secrecy. Finding the way that Oklahoma procured the drugs
"surreptitious" and "questionable at best," the grand jury said the secrecy
"contributed greatly to the Department's receipt of the wrong execution drugs."
"[T]his investigation revealed that the paranoia of identifying participants
clouded the Department's judgment and caused administrators to blatantly
violate their own policies," the grand jury found.
For years, Missouri death row inmates' attorneys have tried in vain to pull
back the curtain on who is supplying the drugs.
Starting in October 2013, Missouri began obtaining its drugs from an
Oklahoma-based compounding pharmacy called the Apothecary Shoppe. Reporters
quickly discovered that the pharmacy was selling execution drugs despite not
being licensed to sell medicines in Missouri, a practice that would normally be
a felony. Shortly after the pharmacy's name was revealed, it agreed to no
longer sell execution drugs.
The state quickly found a new seller but doubled down on secrecy, refusing to
disclose any information at all about the new pharmacy, Foundation Care. But
there were hints: An attorney representing the state's carefully anonymized
supplier had previously represented Foundation Care in an unrelated lawsuit in
2011. The attorney did not respond to a request for comment.
The state argued that identifying their supplier would expose it to boycotts
and harassment, and make it impossible to carry out the death penalty.
Inmates' lawyers argued the secrecy puts their clients at great risk of a
painful death, but then-attorney general Chris Koster's office dismissed their
concerns as unfounded. There was "no reason to believe that the execution will
not, like previous Missouri executions using pentobarbital, be rapid and
painless," argued an attorney for the state.
Errors by compounding pharmacies can lead to painful executions, Dr. Larry
Sasich, a pharmaceutical expert, wrote in a 2014 report for a lawsuit filed by
death row inmates. If the drug is contaminated, there could be a "substantial
risk of pain and suffering." If the pH levels are off, the inmate could feel
like they are being burned alive. If the drug isn???t potent enough, the inmate
could experience nausea and vomiting, or have difficulty breathing and
eventually suffer brain damage - but still be alive. If the drug is too potent,
on the other hand, the inmate could be suffocating or gasping for breath before
they become unconscious.
Concerns about sterilization, pH levels, and drug potency were all specifically
cited by the FDA investigators when they inspected Foundation Care.
It is not known if Foundation Care's drugs caused prisoners to die in agony -
in part because Missouri made it difficult if not impossible for witnesses to
know if an inmate might be experiencing pain during an execution.
During the time it used Foundation Care's drug to execute 17 people, Missouri
had a practice of heavily sedating inmates before witnesses were escorted in.
The execution chamber was soundproof; witnesses would not be able to hear
gasping, such as witnesses have reported in other states. During the execution,
inmates are strapped down tightly to a gurney then covered up with a sheet,
making any movements difficult to detect.
During the many lawsuits seeking to expose Foundation Care, officials refused
to answer basic questions about the pharmacy's qualifications. The attorney who
represented the state on execution matters told a federal judge that even he
didn't know the identity of "M7."
Several federal judges expressed unease over the secrecy.
Inmate Michael Taylor was sentenced to death for killing and raping a
15-year-old girl in 1989 after abducting her from her school bus stop. A week
before his execution in 2014, the state turned to a new supplier, M7, and
refused to turn over any information about its qualifications.
"In fact, from the absolute dearth of information Missouri has disclosed to
this court, the 'pharmacy' on which Missouri relies could be nothing more than
a high school chemistry class."
Taylor and other death row inmates sued, arguing that Missouri's secrecy made
it impossible to know if they would be killed humanely. Taylor lost and
appealed to the 8th Circuit Court of Appeals, which also decided against him,
over the objections of 3 judges on the court.
"One must wonder at the skills of the compounding pharmacist," Judge Kermit Bye
wrote for the dissenting judges. "In fact, from the absolute dearth of
information Missouri has disclosed to this court, the 'pharmacy' on which
Missouri relies could be nothing more than a high school chemistry class."
The case went to the US Supreme Court, which, despite the dissent of 3
justices, allowed the state to execute Taylor without knowing any information
about Foundation Care.
After that, Missouri largely cleared out its death row - executing 17 prisoners
with Foundation Care's drugs.
The aggressive pace Missouri set - scheduling 1 execution per month - made the
state an outlier in the death penalty. While other states slowed down their
execution schedules, Missouri sped up, executing inmates at a faster clip than
it had ever done before.
Missouri hasn't carried out an execution in more than a year now, because it
executed all of the eligible prisoners.
But now, a new inmate faces death. In March, the state intends to execute
Russell Bucklew, who was convicted of killing his ex-girlfriend's lover in
front of his kids in 1996. Bucklew then kidnapped and raped his ex-girlfriend,
and shot a police officer in a subsequent chase.
His attorneys have argued that he, in particular, faces a heightened risk of a
botched execution. Bucklew has a rare disease that causes tumors in his nose
and throat - experts for his defense say that lethally injecting him puts him
at risk of choking to death.
For 13 years, Foundation Care was owned by its 2 founders, Blakeley and
Schultz. But in October 2017, the 2 sold the pharmacy to a subsidiary of
Centene Corporation, a publicly traded, St. Louis-based health care giant that
brought in $40.6 billion in revenue last year. Both the pharmacy and Centene
declined to say how much the company paid to acquire Foundation Care.
Centene did not respond to repeated requests for comment on whether it was
aware that the pharmacy had sold execution drugs or whether it would allow the
pharmacy to continue selling them, and it did not respond to a detailed list of
questions sent by email.
Former attorney general Chris Koster, who was in office when the state selected
Foundation Care and who oversaw the legal battles that kept the pharmacy's
identity hidden for years, was term-limited out of the office in January 2017.
When he left public service, Koster found a new job: senior vice president of
corporate services at Centene.
The company declined to make him available for an interview or answer questions
about whether he played any role in the purchase of Foundation Care.
(source: Chris McDaniel is an investigative reporter for BuzzFeed News)
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